Illinois Courts and Discovery in England

Vol. 28No. 2

Under 28 U.S.C. § 1782, a federal district court may order a person who is found within the district to “give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” District courts are split as to whether that provision should extend to foreign private arbitral tribunals, but the majority of courts have determined that it should. However, in a recent decision, the Northern District of Illinois refused to compel a deposition in Illinois to be taken for use in a private arbitration in the United Kingdom. In the case of Norfolk Southern Corp. v. Gen. Sec. Ins. Co., 626 F. Supp. 2d 882 (N.D. Ill. 2009), the court narrowly interpreted the statute and its legislative history to deny requested discovery.

Since U.S. courts were authorized to gather evidence for use in foreign tribunals in 1885, the courts have struggled with the scope of the word “tribunal.” Legislative intent shows a trend toward the expansion of federal courts’ involvement and assistance in foreign tribunals. Although legislative history and intent show the progression toward broadening the scope of the discovery statute, no specifics regarding the inclusion or exclusion of private arbitral tribunals have been mentioned. The majority of courts that have been presented with this issue held that private arbitral tribunals are included within § 1782 and that district courts may order discovery to be turned over for use in foreign tribunals. Only a minority of courts that have been presented with this issue have ruled to the contrary, finding that private arbitral tribunals are outside the scope of § 1782.

In Norfolk Southern, two insurance companies and a railway company (Companies) moved the court to order a deposition in Chicago, Illinois, for use in an arbitration proceeding in London, England. The arbitration proceeding was a result of a train derailment in Graniteville, South Carolina. The Companies asserted that the deponent would provide relevant information regarding the facts of the dispute. The Companies argued that the court was authorized to order the deposition testimony for use in a private arbitral tribunal in London under 28 U.S.C. § 1782.

The potential deponent was formerly of counsel for an insurance and reinsurance company involved in the train derailment. The arbitration in London was conducted pursuant to an arbitration provision in that company’s reinsurance policy. The potential deponent opposed the motion to compel the deposition. He argued that § 1782 did not authorize the court to grant the Companies’ motion because the corresponding arbitration was a private arbitral tribunal. He further argued, based on precedent and legislative intent, that only arbitrations under governmental entities fall within the scope of § 1782.

The Norfolk Southern court looked to the dictum in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), regarding international discovery in arbitral tribunals. The court found that Intel did not expressly determine whether private arbitral tribunals fell under the scope of § 1782, and that according to Intel, § 1782 only authorized courts to assist in gathering evidence in connection with a proceeding in a foreign or international tribunal, which encompassed “administrative and quasi-judicial proceedings.” Although Intel determined that Congress intended to expand the reach of discovery, the Norfolk Southern court found that Intel’s definition of a “tribunal” was not so broad as to include private arbitral tribunals. Further, according to Norfolk Southern, the Intel decision means that § 1782 does not cover any foreign body with adjudicatory powers, but instead covers only state-sponsored arbitral bodies.

Norfolk Southern contrasted the arbitral tribunal discussed in Intel with the private tribunal at hand. The arbitral tribunal in Intel had multiple tiers of reviewability. The parties in that case had the ability to have the lower court’s decision reviewed by another court. Intel’s definition of an arbitral tribunal included one in which decisions were subject to review.

The arbitration clause in the private contract in Norfolk Southern contained a waiver of review by courts. The arbitration was considered final, and the parties waived any right to appeal or seek review of the decision. Unlike litigation or other arbitral tribunal decisions, the private arbitration did not allow for judicial review. This lack of reviewability led the court to decide that the private arbitral tribunal was not included in the same category as the tribunal described in Intel and therefore not within the scope of § 1782.

After analyzing Intel and looking to the legislative history, the Norfolk Southern court concluded that the arbitration in London was beyond the scope of § 1782, and under its discretion, the court could not compel the deposition to be taken. The court found that because the arbitration was held in a private arbitral tribunal, the court did not have the authority to order the relief the Companies sought. Although only a minority of courts have held that private arbitrations are outside of the scope of § 1782, the court in Norfolk Southern determined that the very definition of “arbitral tribunal” described by the Supreme Court in Intel did not cover the private arbitral tribunal in the present case.

It will be interesting to see how this decision affects future litigation owing to the split opinion across courts. If legislative intent shows a trend toward broadening the scope of § 1782 to better assist in “foreign or international tribunals,” it would be assumed that the scope may eventually include all arbitral tribunals, including private ones. To date, Congress has made no distinction between governmental tribunals and private tribunals in § 1782, although when Congress amended § 1782 to include “foreign administrative and quasi-judicial agencies” as tribunals, it showed the legislative intent to expand discovery beyond conventional courts.

Even though the court in Norfolk Southern made the distinction between the arbitral tribunal in Intel and its own case, these distinctions do not seem to warrant barring federal courts from ordering discovery for private arbitral tribunals. The factors used by the Intel Court to determine whether discovery was compellable for a foreign tribunal are discretionary. A court should not treat the omission of “private arbitral tribunals” in § 1782 as a blanket decision governing each discovery request for the proceedings in such a tribunal. On the contrary, precedent shows that the majority of courts deliberating on the same issue made the opposite distinction. The holding in Norfolk Southern does not resolve the problem of determining which tribunals are covered under § 1782. Instead, it exacerbates the problem because it follows the minority view, contradicting legislative intent.

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